Tuesday, 3 October 2017

UKIP - Political Parties, Branding and Trade Marking.

Yesterday I wrote this piece over on Afro-IP on UKIP’s new logo picking up on the weekend controversy of it being remarkably close to the English Premier league logo, and concluding that trade mark rights are probably best placed of all the potential IP rights available to the FA to stop it. To further substantiate the point I have since come across two European decisions on the similarity of lions which I wanted to share with you together with an observation that political parties ought to pay more attention to the protection of the symbols that they use.

UKIP and the UKIPO have two things in common - the similarity in their acronym and the fact that they have a bent toward national rights but that is where it ends. UKIP have no registered trade mark rights, perhaps for good reason. Their new logo would likely be opposed by the FA and depending on the current practice of the Registry their old logo may attract an objection because it features the pound currency sign so prominently. 

By contrast the Labour Party, The Conservative Party and some others have been actively registering their symbols as trade marks. Their level of activity is, however, relatively low; a few trade marks here and there many of which have been allowed to lapse. Nothing in comparison to the level of expense that their campaigning deserves. Stateside a cursory search of the USPTO Register reveals much the same. The Republicans and Conservatives are low on the polls when it comes to protecting their campaigns using trade marks. This is in stark contrast to the level of trade marking President Trump is renown for in his normal business affairs. Why is this so?

Politics is mostly about winning votes. Winning votes requires communication of manifestos and persuasion. The symbols used by politicians and their parties are incredibly important and as carefully chosen as any brand, perhaps more so given the significant potential for public ridicule or offence and on the upside, their unique ability to encapsulate their message through symbolism. Trade marks are the means of protecting such symbolism. UKIP’s adoption of a lion so close to that of the FA is a glaring admission of the value of brands to political parties, even if they deny it.

Closer to home, a decade ago, a breakaway of the African National Congress - Congress of the People (COPE) was taken to task, initially on trade mark grounds, for their adoption of what they ANC regarded as a symbol which belonged to them. You can read about that here.  This illustrated not only the importance of trade marks and symbolism but also the risk of adoption, and injury to "market share" by an incumbent. In other parts of Africa political parties have been sued for using lyrics of well known songs and even infringing patent rights in ballot boxes; not strictly a branding dispute but close enough to illustrate that political parties face the same risks as any business when it comes to intellectual property rights in general.

Another indication of the lack attention paid to brand protection for political parties is the Nice Classification search feature on WIPO’s website which shows no hits for “politic” or “campaigning”. The USPTO filings illustrate protection in class 35 for campaigning as a promotional activity for political parties whereas filings in the UK tend to focus on class 36 for fund raising and class 41 for events, together with a range of classes protecting marks applied to badges, posters and clothing. For those countries that have not adopted service marks, marks of political parties are filed in classes 9 and 16 for the usual reasons.

Getting back to UKIP, the illustrations above are those of successful lions (Lonsdale v Puhin Deng* and ING v Daniel Cekal) who have protected their market share or hunting grounds, so to speak, based in similarity. One would think that that the FA would likely be successful too against UKIP. It is worth noting though that the registration of the lion on its own i.e. not with the wording accompanying it, makes the task of the FA significantly easier. Put differently, if the FA are setting the standard for good trade mark counsel, then a political party should pay much the same attention to their branding from a governance perspective, if nothing else.

Posted by Darren Olivier

*OPPOSITION No B 1 718 249 and OPPOSITION No B 2 520 529

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